Header graphic for print

Labor Relations Update

NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

Posted in Decertification elections, Employer policies, Handbook, NLRA, NLRB, Section 8(a)(1), Uncategorized

The last few months have seen very little in the way of NLRB decisions.  The recent Supreme Court decision  where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing decisions.

Still, the NLRB has had a full complement of members for almost a year, and the agency manages to push out some decisions.

The Board recently overturned a decertification election where the union lost in a close vote of 69 for and 70 against the union, with 3 challenged ballots. based on a novel interpretation of some language in the employer’s handbook.  In UniFirst Corporation, 361 NLRB No. 1 (July 15, 2014) the employees petitioned to decertify their union.  During the campaign leading up to the vote, representatives of the employer pointed out to the employees how the unrepresented employees were able to participate in the employer’s 401(k) program.  The employer made statements to the effect of, “trust him, vote no and take their union dues and put them into the” existing 401(k).

The Board found statements like these to be an implied promise to grant a benefit “because the evidence shows that the Employer specifically linked the receipt of the 401(k) and profit-sharing plans to voting against the Union in the upcoming decertification election.”

But was such a statement an implied promise?  It would seem to depend on whether all unrepresented employees were automatically eligible to participate in the existing 401(k); if so, the employees would be allowed to participate if they ended representation.  There would be no promise because the employer was merely pointing out a fact.

The Board majority reasoned the employer’s statements were a promise, and therefore objectionable, based on an interesting interpretation of the employer’s handbook.  The Board majority stated:

 Here, neither the Employer’s handbook…., nor any other evidence shows that….the Employer was required under its plans to automatically cover employees if they decertified the Union.  Indeed, the handbook’s statement reserving to the Employer the discretion to modify or terminate the retirement plans weighs against a finding that the benefits were automatic.

Thus, the Board uses the handbook in two ways that likely were not contemplated by the employer.  First, it reasoned that the absence of language that an employer was “required” to ”automatically cover” employees necessarily means that it would have to take some additional action to grant the benefit if employees chose to decertify.  The Board found it objectionable that the language in the handbook was not explicit enough even though the handbook explained the eligibility requirements.  Second, the Board interpreted the existing reservation of rights language in a manner that is new.  Thus, the Board interprets that language as actually saying that the employer was offering to do something new for employees if they ended union representation.  This interpretation is entirely hypothetical and contrary to practice.

Every handbook states that its contents can be changed.  Such statements are common and necessary.  The operative inquiry should have focused on the reality (whether the unrepresented employees all were eligible to participate in the 401(k)), and the plan document itself, which would explain eligibility requirements.  Most 401(k) documents explicitly state, for instance, that employees who are represented by a union are not eligible to participate; therefore, ending representation would have given rise to eligibility.  This means means no additional “grant” of the benefit by the employer would have had to occur, it would have been automatic.  The employees’ actions in voting out the union would have made them eligible, not anything the employer would have had to do.  Moreover, it is doubtful that the reservation of rights in a handbook could be translated into discretion to change the 401(k) plan document, which has its own requirements for modification.

Member Johnson, in a dissenting opinion, recognized the distinction, noting, “[h]ere, as found by the hearing officer, the Employer informed employees–in the give and take of voluntary employee meetings–about benefit plans it offered to unrepresented employees.”  Member Johnson concluded the evidence in the record did not support the objection to the election:

 I conclude that the Employer simply informed employees of the ‘historical facts’ regarding benefits that were available to unrepresented employees.  Indeed, contrary to my colleagues, I believe that the employee handbook in the record unequivocally shows that employees would automatically be eligible for these benefits, by the terms of the Retirement Savings plan, subject only to length of service requirements applicable to all nonunit employees.  The fact that the Employer has the authority to modify or terminate retirement benefits for all covered employees is irrelevant.  Such a reservation of rights is commonplace in employee benefit plans.  There is no evidence whatsoever that the Employer has or would choose to exercise discretion to change eligibility requirements, change vesting rights, or deny coverage to any subgroup of nonunit employees.

Of course, as we have pointed out in previous posts, there are many obstacles to allowing a group of employees to simply vote out its union representative, so the case is not at all surprising.  It is another example of the Board’s tendency to focus on a few words in a policy and apply meaning without regard to context or intent.

Bubba Gump Shrimp’s Social Media Policy Passes Muster, ALJ Says

Posted in Uncategorized

In Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB Administrative Law Judge (ALJ) found a social media rule concerning its wholly owned subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., to not violate the NLRA.   The General Counsel had alleged that the following policy infringed on employee’s rights because, purportedly, it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The ALJ disagreed, and sensibly interpreted the policy, as a whole, to mean that morale problems can be avoided by being civil to one another, rather than outright forbidding speech on job-related issues.  In other words, it is not the job-related subject matter which is being regulated so much as the manner in which it is being discussed and debated.  In ultimately dismissing the complaint in its entirety, the ALJ noted it would be more punitive than remedial to find a violation of an older version of the handbook which had an arguably-ambiguous copyright infringement policy, since it was no longer issued to employees.

This decision underscores the fact that even though the General Counsel may be the gatekeeper for prosecuting social media and work rule cases, ALJs and the Board may very well, at the end of the day, find these policies consistent with the Act.


Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

General Counsel Office Advocates Dramatic Change to Joint Employer Standard

Posted in General Counsel, NLRB

Earlier this year, in the case of Browning –Ferris Industries of California, Inc., 32-RC-109684, the NLRB invited parties to submit briefs on whether the Board should change its long-held standards for assessing when two separate entities should be treated as “joint employers”.   Late last week, the Board’s General Counsel submitted a brief advocating for a change to the three decades old joint employer standard.  If the General Counsel’s view is accepted, it could have significant repercussions for employers in virtually every industry.

For the past thirty years, the Board has determined whether two separate entities are joint employers under the Act by assessing whether they exert such direct and significant control over the same employees such that they “share or codetermine those matters governing the essential terms and conditions of employment . . . .”  TLI, Inc., 271 NLRB 798, 798 (1984).  To make this determination, the Board evaluates whether the putative joint employer “meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction” and whether that entity’s control over such matters is direct and immediate.  TLI, Inc., 271 NLRB at 798 (citing Laerco Transp., 269 NLRB 324 (1984)).  That standard has been challenged on several occasions in the past, but the Board majority, in both Democratic and Republican administrations, adhered to the direct control standard.

Asserting that the existing standard undermines fundamental principles under the Act, the General Counsel’s office urged the Board to adopt a broader “totality of the circumstances” test  – -  finding joint employment whenever a putative joint employer “wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence.”  The proposed test (which the General Counsel has inappropriately characterized as a return to a “traditional” joint employer standard) would ensnare entities with only indirect or worse, only potential control over the employee’s terms and conditions of employment.  In the General Counsel’s view, this change is needed to take into account the “industrial realities” where a party is necessary to meaningful collective bargaining.  As specific examples, the General Counsel’s brief specifically identifies entities contracting for temporary or contingent workers, franchisors, and companies that outsource functions integral to the business as targets for its broadened joint employer standard.

A change to the joint employer standard, even one that is less dramatic than that advocated by the General Counsel, can have widespread impact across virtually every industry.  More than a dozen other briefs were filed by employer and labor associations taking positions on all sides of this hot button issue, including a brief filed by this firm on behalf of the Coalition for a Democratic Workplace and fourteen other business associations advocating to retain the existing standard and not jettison thirty years of settled law.

We will continue to monitor this issue and will report on new developments.

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

Posted in Collective Bargaining, NLRA, NLRB, Recess appointments, Unfair Labor Practices, Workplace Investigations

In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess.  The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite three member quorum for a significant period of time in which it issued sweeping changes to NLRB case law.  We have addressed this issue many times in our blog here, here, here and here, among others.

The Supreme Court decision goes into detail explaining the purpose of the Recess Appointments Clause of the United States Constitution.  Justice Breyer, who authored the opinion noted, to say the very least, this was a case of first impression:

We have not previously interpreted the [Recess Appointment] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

The Court invalidated the recess appointments on substantially narrower grounds than the DC Circuit’s prior opinion.  The court held that a recess lasting only three days, or even as many as ten days, was not long enough for a president to exercise the recess appointment power.  The opinion strongly suggests, however, that recesses of longer than ten days might be sufficient.

The real significance, of course, is that a number of decisions rendering sweeping changes to the interpretation of the National Labor Relations Act were rendered by Labor Board panels comprised of at least one individual out of three whose recess appointment has now been deemed invalid.  This means that those decisions, for the time being, are rendered a nullity and the law as it existed prior to the decisions being rendered should be applied, which necessarily would result in a resetting of many cases.  Of course, it is more complicated than that.  Chairman of the NLRB Mark Pearce was on all of those panels (holding the only valid appointment) and so it seems likely that many of the decisions will be re-affirmed by the current Board which is comprised of Senate confirmed, valid appointees.

Among the decisions that have been called into doubt are:

Alan Ritchey, Inc., 359 NLRB No. 40 (Dec. 14, 2012) – imposing an obligation to bargain over the “discretionary” aspects of discipline prior to issuance in cases where the union is newly certified and bargaining for an initial contract is underway.  We previously wrote about this decision here.

WKYC-TV, 359 NLRB No. 30 (Dec. 12, 2012) – where the NLRB discarded over 50 years of precedent and held that dues checkoff clauses survive the expiration of the agreement.  We covered this decision here.

Fresenius USA Manufacturing, Inc., 358 NLRB 138 (Sept. 19, 2012) – holding that while an employer’s investigation into a harassment complaint was entirely lawful, its discipline of a union member for writing a vulgar term was unlawful because the activity was “protected” by the NLRA.  We provided the details to this decision here.

American Baptist Homes of the West, 359 NLRB No. 46 (Dec. 16, 2012) – Requiring employers to turn over witness statements as part of the duty to provide information to the union, overruling longstanding precedent stating such statements could be withheld.  We previously discussed the case here.

Many employers are currently defending cases before the NLRB that involve invalidated decisions.  How these cases are handled going forward remains to be seen. For example, employers that did not engage in pre-discipline bargaining during the period between certification and a new agreement for all intents and purposes acted in accordance with the law that existed at the time the decision was made. Yet many face complaints based on Alan Ritchey, Inc., which is no longer valid.  What ultimately will happen in cases like that remain to be seen.

Also, a number of Regional Directors were appointed during the period the Board lacked a quorum.  It is likely many of their decisions made during this period will be challenged as well.

Chairman Pearce issued a terse press release about the Supreme Court’s decision, which does nothing to describe what will happen next.   Stay tuned, more on this issue will come in the next several weeks.

It is perhaps ironic that a Supreme Court decision which clarifies so much on the presidential recess appointment power also raises so many questions going forward.  As we navigate this period, we will cover the developments here.


Old Fashioned Protected Concerted Activity Stirred Up With A Twist

Posted in Leaving work without permission, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Strikes, Unfair Labor Practices

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”).  The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014).

In this case, the employer operated a successful chain of barbeque restaurants.  One of the benefits offered to its employees (on a location by location basis) was a free meal, valued at between six and ten dollars, each day an employee was scheduled to work.  The particular branch involved in this case was highly successful, and its employees enjoyed the free lunch benefit.

Enter the Workers’ Organizing Committee, an example of a growing phenomenon known as worker centers.  Worker centers are generally closely affiliated with labor unions and their allies such as community organizers and certain religious groups and foundations.  The Workers Organizing Committee has the goal of raising restaurant worker pay to fifteen dollars per hour.  This is a goal shared by several other worker center groups targeting various employers in the restaurant and quick service food industry.

As a means of achieving its goal, the Workers’ Organizing Committee turned to a classic labor tactic – a strike.  This was not the typical strike called by a labor union in support of a collective bargaining demand.  Instead, it was a one-day strike engaged in by workers who, even if not represented by a union, still have the right to engage in “concerted activities for . . . mutual aid or protection” under Section 7 of the Act.  Many years ago, the U.S. Supreme Court ruled that this kind of a strike is concerted activity which is legally protected under the Act.  NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).  In the absence of violence or other untoward conduct, strikers may not be punished or discharged for engaging in such a strike.  The workers in this case engaged in a one-day strike in support of the demand for increased wages, and then exercised their right to return to work following the strike.

What did the employer do in response?  According to the ALJ, following the workers return, the employer eliminated the workers’ free meal benefit.  Now normally, in a non-union setting, an employer is free to grant, withdraw or adjust such terms and benefits. But here the ALJ found that the employer’s reason for of doing so was to retaliate against the workers for engaging in the protected one-day strike.  As such, withdrawing the free meal benefit constituted a violation of Section 8(a)(1) of the Act, which makes it unlawful for an employer to restrain, coerce or interfere with the employees’ right to engage in concerted protected activity.  As a remedy, the employer was ordered to reinstate the free meal benefit and otherwise make the employees whole for any other loss incurred as a result of the discontinuation of the benefit.

This case is in some ways very simple and straight-forward — old fashioned protected concerted activity.  But it also has a twist – the involvement of a worker center.  Much has been written about and debated over whether worker centers should be treated as labor organizations, subject to the same reporting and legal obligations and prohibitions that apply to traditional labor unions.  Whatever the eventual outcome of those debates, employers and employees have rights and obligations under the Act that transcend the question. The tactics employed by the Workers Organizing Committee in this case have been and will undoubtedly continue to be repeated by worker centers — and employer responses must be framed within the rights protected by the Act, union or no union.

NLRB Administrative Law Judge Rulings on Work Rules and Social Media Policies Continue to Perplex

Posted in Employer policies, NLRA, Social Media, Social Media Policies

NLRB Work Rules and Social Media Policies Continue to Perplex

The NLRB may be getting #SocialMedia, but confusion concerning employer work rules and social media policies became obvious yet again in Professional Electrical Contractors of Connecticut (June 4, 2014).  In this decision, ALJ Raymond Green wrote that “a legitimate conflict of principles . . . will require Board and Appellate Court clarification” with respect to these rules, especially those concerning recording, taping and photographing while on the job.

The ALJ ruled in the following ways with respect to handbook policies which forbade employees from:

  • Disclosing the location and telephone number of employee customer assignments to outsiders
    • The ALJ found such a prohibition as to location is too broad as it could “inhibit” the ability of a union to meet and communicate with employees when on assigment,  but that the restriction as to customer’s phone numbers is permissible as the employees already have their own work provided or personal cell-phones where they could be reached by the union or fellow employees.
  • Disclosing customer information to outsiders, including other customers or third parties and members of the employee’s family
    • The ALJ upheld this rule because it would not reasonably chill employees from talking to one another or the union about terms and conditions of employment.
  • Boisterous or disruptive activity in the workplace
    • The ALJ relied on prior Board decisions to strike down the rule because, as written, it would be “sufficiently imprecise” by encompassing any disagreement or conflict among workers protected by Section 7.
  • Initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation
    • The ALJ found that since the rule so broad as to include personal computers, it overreached and thus was impermissible.
  • Forbidding photography, taping and recording any person, document, conversations, communication or activity that in any way involves the Company, its associates or customers or any other individual with which it is doing or intending to do business with
    • Despite the employer’s best intentions to protect customer privacy and confidentiality, the effect on the employees was considered the determinative factor.  Thus, the ALJ struck down the rule, except to the extent that the customer explicitly prohibited photographing and filming on the customer’s premises.  However, this ruling is in tension with a recent ALJ decision in Whole Foods Market (Oct. 30, 2013) which found such a rule permissible where the employer forbade recording of conversions or the use of such devices.

As demonstrated particularly by the ALJ’s disagreement with another ALJ concerning photographing and recording at the workplace, the NLRB’s policy concerning work rules and social media remains in a state of disarray.  Further, if the ALJ’s ruling in this case stands, then the logical extension is that employers in similar circumstances will have to verify whether each customer or vendor with which they conduct business permits or disallows photographing and taping on their premises. 

One can hope that eventually, as this and other cases wind their way to the Board and the courts, that unreasonable burdens like this will be replaced by more reasonable and practical policies, and that consistency will be brought to NLRB adminstrative law judge rulings and regional director complaints.  In the meantime, the General Counsel has stated that he will focus on rules explicitly limiting employee rights to discuss wages and other terms and conditions of employment.  Again, as these specific types of straight-forward cases become the target of General Counsel’s enforcement efforts, one can hope that the agency will move away from those unfair labor practice allegations which seem to be based mostly on theoretical, highly speculative allegations about how some employee might read some otherwise common sense rule.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

NLRB Gets #SocialMedia: Board and ALJ Rulings Recap

Posted in General Counsel, NLRA, NLRB, Objectionable Conduct, Protected activity, Social Media, Social Media Policies, Unfair Labor Practices

‘April rulings bring May muddling’ might be a better way to tweet recent social media decisions at the National Labor Relations Board (NLRB) given the Board’s ruling in Durham School Services (April 25, 2014) and an Administrative Law Judge’s (ALJ) opinion in Kroger Co. of Michigan (April 21, 2014).  Together, these two decisions show that the NLRB remains focused on social media policies and their implications for employee section 7 rights under the National Labor Relations Act (Act).

Kroger Co.: ALJ Flaunts NLRB General Counsel Guidance Memorandum

In Kroger Co., an ALJ found portions of a handbook disseminated to employees to violate employees’ section 7 rights because they reasonably tended to chill employees in the exercise of their Section 7 rights.  Specifically, the ALJ found that:

  • Requiring a disclaimer whenever the employee spoke on “work-related” issues online even in their personal capacity “unduly burden[s]” legitimate section 7 communications and was broader than employer’s interest in not having employee’s speech be confused with employer-sanctioned speech.
    • This was directly contrary to a GC Memorandum OM 12-59 (May 30, 2012), which concluded that the requirement that “employees must expressly state their postings are ‘my own and do not represent [Employer’s positions, strategies or opinions’ is not unlawful.”  The ALJ stated that the GC Memorandum was “without precedential value” and it was “not persuasive to the extent such a disclaimer would apply to every online communication by an employee which concerns ‘work-related’ information and as to which the employee is identifiable as an employee for the Employer.” 
  • Prohibiting employee’s use of employer’s intellectual property (IP) without employer’s permission was an overbroad restriction.
    • The Employer unsuccessfully relied on McKesson Corp., Case 0-066504, NLRB Advice Memo, Mar. 1, 2012, where the General Counsel approved language requiring employees to “Respect all copyright and other intellectual property laws,” including the company’s own copyrights, trademarks, and brands.  The ALJ viewed the McKesson Advice Memo as persuasive, even if not binding, but not germane to the rule at issue.  The ALJ found that whereas the policy in McKesson was driven by compliance with IP law generally, the Kroger policy was focused only on “not using Kroger’s logos, banners, etc., under any unapproved circumstances, many of which would not violate intellectual property law.”
  • Restriction on employee speech concerning rumors, speculation and either personnel matters and/or the Employer’s business plans are prohibited under the Act.
    • The ALJ found that this restriction on speech was overly broad because it would be reasonably understood by employees to cover a range of issues on which employees have a right to speak, including transfers of employees, potential shutdowns, closures, layoffs, transfer of work, wages and other terms and conditions of employment with nonemployees (e.g. union representatives).   The ALJ stated that his opinion was consistent with Hyundai American Shipping Agency, Inc., 357 NLRB No. 80 (2011), where a rule prohibiting “harmful gossip” about managers was upheld, because here “rumors and speculation” was problematically tied to “business plans” and, furthermore, that false speech alone cannot be prohibited under the Act.   The ALJ read terms such as “personnel matters” and “business plans,” which were “not defined, limited, clarified, or even mentioned” in the other parts of the provision, to reasonably be construed as examples of confidential information, which would be a violation of the Act as the overbroad policy would deter employees from communicating about personnel issues or business plans that affected their rights under the Act.
  • Barring behavior “inappropriate at work…and that will that will reflect a negative or inaccurate depiction of our Company” is an overbroad restriction.
    • The ALJ noted that negative (or inaccurate) descriptions could include Section 7 protected activities, such as criticizing Employer’s “treatment of employees, and other issues related to wages, hours, and terms of condition.”  The ALJ noted that “inappropriate” here was defined as “disparaging,” which could involve protected activity under the Act.  However, if defined as “offensive, demeaning, [and] abusive,” this would be the very definition of harassment under federal and state law and would have otherwise been upheld based on Board precedent.
  • Discipline for violating terms of the social media policy is not an independent violation of the Act because it is merely derivative.
    • The ALJ rejected the GC’s argument that a policy threatening discipline for violating terms of the social media policy was an independent violation of the Act. 

The ALJ decision introduces even more nuance for employers to consider in crafting their social media policies.  The decision also calls into question the utility of previous GC Memoranda on social media policies, which have provided much of the guidance for employers in drafting social media policies compliant with the Act.  

Durham School Services:  Employee Access to NLRB Decision

For the first time, in Durham School Services, the results of a representation election were set aside partly as a result of the social media policy in an employer’s handbook.   Employees were advised to “limit contact with parents or school officials,” “keep all contact appropriate…professional and respectful,” and further warned against “publicly shar[ing] unfavorable information.”  The ALJ found that the social media policy was overbroad and vague, tending to chill employees’ exercise of section 7 rights because they did not define what might constitute these prohibitions.  Three of the five Board members supported the ALJ’s ruling in this regard, whereas the other two members neither reached nor joined in the findings of the majority with respect to the social media policy.  Rather, Members Miscimarra and Johnson based their support of rerunning the election solely on the basis of  the unlawful discharge of a pro-union employee. 

In the decision the Board also unanimously adopted a new policy of adding hyperlinks to the underlying decision as part of the notice to be posted by the employer.  This means that employees can either use a smartphone QR code reader or type in the URL into a web browser to access the underlying decision, in addition to requesting a copy by mail or telephone from the Executive Secretary.


These new decisions on social media demonstrate that the NLRB’s involvement in social media policies continues at a fervent pace, with growing pains apparent as ALJs make their own independent interpretations distinct from those of the GC.  Unfortunately, the NLRB’s social media jurisprudence and enforcement policy seem suffused with a sense of subjectivity that is very frustrating for employers.  Many cases seem to deal with no more than theoretical problems created by the unknowable reaction of unknown employees to various nuanced meanings of what appears to be common sense language in employer social media policies.  In any event, at this stage employers and their lawyers are tasked with attempting to comply with the law while reconciling different sources of NLRB authority and guidance on social media policies.  


Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs

Posted in Email, Employer policies, NLRA, NLRB, Protected activity, Solicitation

In a development of importance to both union and non-union employers, the NLRB General Counsel has asked the NLRB to overrule its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  In Register Guard, the Board had held that employers could bar employee use of the employer’s email for non-business purposes, including union or other communications protected under Section 7 of the National Labor Relations Act, so long as the employer did so on a non-discriminatory basis. 

The General Counsel now seeks a new rule that employees may use employer email for union or other Section 7 protected purposes so long as doing so does not impede production or workplace discipline. The Board has issued a notice the case, Purple Communications, Inc., Case Nos. 21-CA-095151, 21-RC-091531 and 21-RC-091584, inviting interested parties to file amicus briefs by June 16, 2014. 

In its notice, the Board asked the amicus briefs to address the following questions:

1. Should the Board reconsider its conclusion in Register Guard that employees

do not have a statutory right to use their employer’s email system (or other

electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access

to the employer’s electronic communications systems should be established?

What restrictions, if any, may an employer place on such access, and what

factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on

the employer of employees’ use of an employer’s electronic communications

technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media

accounts, and/or personal email accounts affect the proper balance to be

struck between employers’ rights and employees’ Section 7 rights to

communicate about work-related matters? If so, how?

5. Identify any other technological issues concerning email or other electronic

communications systems that the Board should consider in answering the

foregoing questions, including any relevant changes that may have occurred

in electronic communications technology since Register Guard was decided.

How should these affect the Board’s decision?

The Board also invited amici to submit “empirical and other evidence”, which most likely means studies showing how employees use email in the workplace, how much productive time is lost because of over-use of email, and the like.  It is also possible the Board’s eventual decision could have an impact on other types of employee communications through various electronic devices and social media.

It has long been anticipated that the new Board and General Counsel would want to revisit the Register Guard decision.  Now that the time has come, it will be important for employers to engage as amici in an effort to shape the outcome and provide all Board members — including possibly dissenting ones — with both legal analysis and practical and operational considerations that should inform the Board’s policy choices in this important area.

Hail Mary: NLRB Regional Director Holds College Football Players are Employees

Posted in Bargaining units, NLRA, NLRB, Section 7, Uncategorized

Football Tackle

On March 26, 2014, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act, allowing them the opportunity to unionize through an NLRB election.

First and Ten: A Day in the Life

The Regional Director’s decision provides a detailed description of the daily life and sports-related activities of a NCAA Division I Northwestern football player, often reiterating that the time players devote to football exceeds the time players devote to academic activities. Everything from weight room conditioning to a mandatory team dinner-and-a-movie is included in the exposition of the players’ schedule, with an emphasis on the time commitment required for all football-related activities, amounting to about 40 to 50 hours per week during the season.

In the Pocket: The Director’s Opinion

In finding that the scholarship players were within the common law definition of “employee,” the Regional Director focused almost exclusively on the “compensation” they receive for playing football at the school and the strict teams rules and standards for participating on the team.

In the Regional Director’s view, the players perform services for the benefit of the University, since the school receives revenue from its football program, and are compensated in the form of tuition, room and board, and money for books. Addressing the players’ unique form of compensation, the Regional Director stated that “[w]hile it is true that the players do not receive a paycheck in the traditional sense, they nevertheless receive a substantial economic benefit for playing football.” Also acknowledging that the players might not feel pressure to perform on the field, as their scholarships have a four-year term, the opinion emphasized the fact that players’ scholarships can be reduced or cancelled for things like abusing team rules.

Citing the detailed gameday itineraries, team rules, and strict monitoring of player behavior by coaches, the Regional Director ruled that the scholarship players are subject to the University’s “control” in the performance of their duties. After describing the efforts that football coaches make to aid the players in their academic pursuits, such as mandatory study halls and tutoring, the Regional Director mused that “these noble efforts by the Employer, in some ways only further highlight how pervasively the players’ lives are controlled when they accept a football scholarship.”

However, only scholarship players are declared employees in the decision. In the Regional Director’s view, walk-ons who do not receive scholarships are not entitled to be in the bargaining unit, because they play only for the “love of the game.”

 Touchdown or Fumble at the Goal Line? Brown Inapplicable

The Regional Director, without much explanation, rejected the idea that Board’s opinion in Brown University, 342 NLRB  483 (2004) which held that graduate students at universities were not employees under the Act, had any application to football players.

Despite this, the Regional Director than went on to explain why, even if Brown did apply, the football players should be considered primarily employees. The opinion considers each of the factors the Board focused on in Brown:

  • their principal time commitment is to football activities rather than academic activities;
  • unlike in Brown, where the graduate assistants’ teaching and research duties constituted a core element of their graduate degree requirements, the players’ football activities are not required to obtain their undergraduate degree;
  • the academic faculty members do not oversee the athletic duties that the players perform, which mitigates the concern in Brown that imposing collective bargaining would have a “deleterious impact on overall educational decisions” by the academic faculty; and
  • the players’ compensation is not financial aid to attend the university regardless of the quality of their work, as in Brown, but is rather tied to their athletic services, and would be revoked if they quit or were released from the team.

 Instant Replay Challenge:  Appeal Likely

An appeal is most certainly forthcoming to the full Board in Washington – although given the time it has taken the Board to issue decisions in its cases on medical residents and graduate students, this issue could be around for a very long time before it gets resolved. In the meantime, we are likely to see more schools faced with these types of organizing campaigns and elections among their scholarship athletes.

Advice, Anyone?

Posted in Advice, General Counsel, Mandatory submissions, NLRA, NLRB

The NLRB General Counsel has issued a memorandum setting out those cases and issues he wants sent from the regional offices to the Division of Advice in Washington, DC.  The Division of Advice, as the name suggests, is the arm of the General Counsel’s office which provides legal advice to the General Counsel and to the Regional Directors in the form of Advice Memoranda.  Depending on the issue, the General Counsel may be personally involved in formulating those memoranda. 

The Division of Advice performs a key function in the General Counsel’s office, since it addresses all the cutting edge and unresolved issues presented to the agency.  It assists the General Counsel in addressing those issues and fashioning a consistent nationwide prosecutorial policy on them.  The Division of Advice also assists the agency in identifying cases and developing arguments where the General Counsel wants to propose that the Board make a change in existing law.  Indeed, as you go through this memorandum, you can identify those areas where there appears to be an interest in overruling or augmenting Board legal precedent, as well as in adapting Board law to new developments in the law and in the workplace. 

Virtually every NLRB General Counsel has issued a mandatory advice submission memorandum, so this is nothing unusual.  But General Counsels may differ in what they want sent to the Division of Advice, so this memorandum offers an interesting insight into the thinking and priorities of General Counsel Griffin.